‘No dogs’ rule violates California housing law

Must condo association pay for tenants' emotional distress?

Since 1998, Jayne and Abdelfatah “Ed” Elebiari owned a condominium at the Auburn Woods I complex. Seven years before their condo purchase, Ed was in a serious car accident and suffered brain damage that required three surgeries. He is hydrocephalic, has a seizure disorder, severe headaches, and suffers from depression.

His psychiatrist also diagnosed him as having bipolar disorder and obsessive-compulsive personality disorder. Ed’s doctor considers him to be permanently disabled and incapable of working.

Purchase Bob Bruss reports online.

Ed’s wife Jayne also suffered from depression. Her condition was diagnosed as “major depression, recurrent” with depression episodes lasting from nine months to a year.

The Auburn Woods I condo complex bans dogs, but allows house cats, birds and other indoor pets. Despite this ban on dogs, Jayne and Ed brought home a small, 11-pound terrier named Pooky. Jayne believed the dog would help her and her husband with their depression.

Jayne’s condition improved, as did Ed’s when he took the dog for walks and cared for her. Although there had been no complaints, the condo property manager sent Jayne and Ed a formal letter stating they were violating the CC&Rs (conditions, covenants and restrictions) against dogs on the premises. He threatened to impose fines.

Because Jayne and Ed could not afford the fines, they took Pooky to a friend’s home. Ed cried for three days afterward and had sleeping problems, as well as increased anger and irritability. Jayne’s depression returned and she became irritable. She stayed in bed rather than going to work.

Jayne asked the condo manager for permission to keep the dog as a “reasonable accommodation.” He refused, despite her promise to be certain the dog did not cause any problems. Jayne appealed to the condo board of directors, but they refused to make an exception to the CC&R rule banning dogs.

Jayne and Ed then filed a complaint with the state fair-housing agency, alleging Auburn Woods I discriminated against them because of their disabilities.

After a hearing, the state agency ruled that Jayne and Ed are disabled and that the condo association discriminated against them by refusal to make a reasonable accommodation, and ordered payment to Ed of $5,000 and to Jayne of $7,500 for emotional distress. The condo association appealed.

If you were the judge would you rule the condo owner’s association failed to make a reasonable accommodation to allow Jayne and Ed to keep a small dog?

The judge said yes!

There is substantial evidence the condo homeowner’s association failed to make a reasonable accommodation for the medical conditions of Jayne and Ed, the judge explained. A companion dog would be a satisfactory solution to this problem, he continued.

“Consequently, even if an animal does not qualify as a service animal, there is no basis for asserting that there is no duty to reasonably accommodate non-service animals,” he emphasized.

Condo homeowner associations should make reasonable exceptions to their rules, such as a companion dog, despite their rules prohibiting dogs, the judge ruled. Therefore, the emotional distress payment awards to Ed and Jayne made by the state fair-housing agency are enforceable, the judge concluded.

Based on the 2004 California Court of Appeal decision in Auburn Woods I v. Fair Employment and Housing Commission, 18 Cal.Rptr.3d 669.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).

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